European human rights court rules mass surveillance illegal

Decision may kill off UK government spying law

The European Court of Human Rights (ECHR) has ruled that mass surveillance is illegal, in a little-noticed case in Hungary.

In a judgment last week, the court ruled that the Hungarian government had violated article 8 of the European Convention on Human Rights (the right to privacy) due to its failure to include "sufficiently precise, effective and comprehensive" measures that would limit surveillance to only people it suspected of crimes.

Under a section of the 2011 National Security Act, a minister of the government is able to approve a police request to search people's houses, mail, phones and laptops if they are seeking to protect national security.

That process does not require judicial review or approval and the law does not provide the circumstances under which the surveillance can be ordered (unlike other parts of the same law). A minister can order the surveillance for 90 days and extend it by another 90 days and there is no obligation to delete any of the information gathered during that time once the surveillance is ended.

Wide and narrow

Two activists, Máté Szabó and Beatrix Vissy, sued the Hungarian government over the law in 2014 claiming it infringed their human rights, and the ECHR's Fourth Section heard the case.

The court ruled that the Hungarian law did not provide sufficient guarantees against abuse. It also chose to more closely define a key part of article 8 of the Convention – that something be "strictly necessary in a democratic society" – as meaning not just a general protection of democratic institutions but also for "obtaining of vital intelligence in an individual operation."

The court said the Hungarian government should be required to interpret the law in a narrow fashion and "verify whether sufficient reasons for intercepting a specific individual's communications exist in each case."

Or in other words, every individual case must be looked at carefully and a decision made on each. Which is clearly impossible if the law is taken to carry out mass surveillance, i.e., hoovering up information over the internet and then searching in it.

From Russia with love

The court made repeated references to another recent ECHR decision in December in which the Russian government was also found to have violated the same section for its mass surveillance of telephone calls. In that case, Roman Zakharov said his privacy was being violated by the law, which forced mobile network operators to install equipment to permit unrestricted interception of all of his telephone communications.

While the Zakharov case was decided by the ECHR's full "Grand Chamber" and this most recent Hungarian case by a sub-set of judges called the Fourth Section, the ruling is binding on all European countries.

The Fourth Section is also the part of the ECHR that covers the UK, and the decision is likely to impact controversial legislation that the UK government is currently trying to pass that would enable similar mass surveillance under the control of a minister. With this month's judgment, many of the current measures being proposed in the UK would almost certainly also violate article 8.

It should be noted that the decision does not ban the surveillance of citizens, nor does it require judicial oversight of such surveillance orders. But it is quite clear that such surveillance must be targeted at an individual and not used more broadly.

In that respect, and combined with the Zakharov case, it would appear that the European Court of Human Rights has come down categorically against mass surveillance.

So what's the impact?

The decision cannot stop the UK government, for example, from passing legislation that allows for mass surveillance.

But it does mean that if the UK does, it will almost certainly be taken to the ECHR and found to have violated the European Convention. The UK government can of course continue to ignore that ruling, but it would face fines and it would lose international standing and reputation.

British prime minister David Cameron is not a big fan of the court, having previously complained that it is interfering in national issues, as it did when it found that the UK government's effort to extradite convicted terrorist Abu Qatada to Jordan was a violation of human rights, as he would be unlikely to get a fair trial.

In the end, the UK and Jordan agreed to a treaty that meant information extracted from him under torture could not be used in a trial (shortly after he was deported to Jordan and put on trial, found not guilty and released from jail in September 2014).

As such, the ECHR's rulings have been shown to have a direct and significant impact on the behavior of countries within the European Union. ®